Developments in Energy, Natural Resources & Environmental, Real Estate, and Land Use Law in the Pacific NW

The Washington Conservation Commission’s Office of Farmland Preservation recently published Planning the Future of Your Farm, a workbook for families who want to keep their farmland in production and/or “in the family” as it passes to the next generation. Among other tools, the publication addresses how to navigate the challenges families face in managing the legal process for transferring real property and working farm assets across generations.

As the first edition prepared for a western state, Planning the Future of Your Farm is meant to address estate planning for farmers, ranchers, and other landowners in Washington State. The workbook includes chapters on managing risk in the farm transfer process, improving family communication, evaluating farm resources, tools for farm transfer, and meeting with professional advisors.

Estate planning is an important tool for the preservation of farmland and the continuation of farm operations in Washington State, contributing to the health of our state’s agricultural economies and local communities.

Van Ness Feldman partner Duncan Greene was a primary contributor to this important resource for Washington farmers.

The Washington State Department of Ecology just re-issued the general permits that regulate discharges from municipal separate storm sewer systems (MS4s) in Western Washington. The re-issued permits will require local governments in Western Washington to make changes in their regulation and management of polluted stormwater runoff.

As explained by Ecology, the agency re-issued the permits in response to the recent resolution of administrative appeals of the permits, which were originally issued in 2012. The changes will affect how local governments will implement requirements related to watershed planning, Low Impact Development (LID) techniques such as green roofs and rain gardens, and other issues.

Ecology has also modified the Stormwater Management Manual for Western Washington (SWMMWW), which provides guidance on the measures necessary to manage stormwater impacts caused by new development and redevelopment.

The 60-day comment period on the proposed modifications to the permits and the SWMMWW ends on October 6, 2014.

On May 6, the White House released the Third U.S. National Climate Assessment, the most authoritative and comprehensive source of scientific information to date about climate-change impacts across all U.S. regions and on critical sectors of the economy.

Today, Governor Inslee signed an executive order establishing a Carbon Emissions Reduction Taskforce to provide recommendations on the design and implementation of a carbon emission limits and market mechanisms program to reduce carbon pollution and stimulate clean energy development in Washington State. The Taskforce will include Governor-appointed representatives of business, labor, public interests, and public health and will be asked to participate in the best interests of the current and future citizens of Washington State. Their advice and recommendations will inform legislation to be requested by the Governor for consideration during the 2015 legislative session.

The Order includes the following goals:

· Reduce carbon emissions through new cap-and-market program

· Reduce and phase out use of coal for electric generation

· Strategies, policies, and investments to support clean transportation options and cleaner fuels

· Accelerate development and deployment of clean energy technology

· Increase private and commercial energy efficiency

· Reduce state government’s carbon footprint through efficiency

Studies indicate that a program to limit carbon emissions — implemented through market mechanisms — would result in a net increase of 19,300 jobs and increased economic output of $3.3 billion in Washington by 2020.

The Mazama pocket gopher is officially “threatened” in Thurston and Pierce counties. After many years of debate, environmental studies, and litigation, the U.S. Fish and Wildlife Service (USFWS) finally announced the listing of four subspecies of Mazama pocket gophers as threatened under the Endangered Species Act (ESA), as well as the designation of more than 1,600 acres in Thurston County as critical habitat for the gophers. The agency’s listing and critical habitat decisions could have a significant effect on landowners in Pierce and Thurston counties, subjecting them to potential permitting requirements and restrictions on their ability to develop and use their land.

The decisions are the result of a settlement between USFWS and the nonprofit Center for Biological Diversity, a national conservation organization dedicated to protecting endangered species that had sued the agency to accelerate ESA decisions for 757 species across the country. And the USFWS’s decisions are likely to be challenged again, including challenges by landowners and businesses as well as challenges by environmental groups. The National Association of Homebuilders recently sued the USFWS over the process it was using to evaluate the ESA status of the pocket gopher, and on March 31, 2014, that lawsuit was dismissed. The Center for Biological Diversity, while generally supportive of the listing and critical habitat decisions, expressed disappointment over the agency’s exemption for “activities that clearly destroy these pocket gophers’ homes – like plowing.”

While the outcome of potential litigation over these decisions is hard to predict, it is clear that the pocket gopher will continue to be a major issue for landowners, businesses, and local governments in the South Sound for the foreseeable future.

It appears that getting the green light to operate a marijuana business depends on your zip code. Some local governments in Washington are taking action to ban medical and recreational marijuana operations, while others are permitting or even attempting to encourage marijuana businesses. Jurisdictions permitting marijuana businesses may be welcoming decisions by others to adopt marijuana bans, which could result in more customers and tax dollars funneled to more pot-friendly jurisdictions. In the middle ground between banning and encouraging, local governments continue to debate what review processes and other requirements should be imposed for permitted marijuana operations.

On the “banning” side of this issue, the Washington Court of appeals just issued a decision upholding the authority of local governments to ban “collective gardens” for medical marijuana, as the City of Kent did in 2012. This decision comes on the heels of an opinion issued by the Washington Attorney General concluding that I-502, as drafted and presented to the voters, does not prevent local governments from regulating or banning recreational marijuana businesses in their jurisdictions.

Meanwhile, on the “permitting” side of the issue, the King County Council is considering an ordinance that would amend the zoning provisions for Vashon Island to allow marijuana uses in certain zones. Due to an apparent oversight by the County when it adopted an ordinance allowing marijuana uses elsewhere in the County, such uses not allowed under the Vashon Town Plan’s current zoning provisions. On April 1, the County’s Transportation, Economy and Environment Committee voted to recommend approval of the ordinance to correct this oversight.

The committee voted against recommending an amendment to another ordinance, however, that would have raised the threshold size of an operation requiring a conditional use permit (CUP) from 2,000 square feet to 10,000 square feet. The CUP process is intended to provide additional notice, opportunity for comment, and the ability for the County to impose conditions to mitigate site-specific impacts of a proposed use. Sponsors of the amendment argued that the 2,000-square-foot threshold was too low and would impose a costly and time-consuming requirement on small businesses attempting to get a foothold in the burgeoning marijuana industry. Opponents of the amendment preferred to “proceed carefully,” citing the “potential for odors” and other impacts, and argued that the fact that a CUP could cost thousands of dollars, and could delay approval of a marijuana operation for six or more months, did not make the CUP requirement unduly burdensome.

King County and other jurisdictions will likely continue to look at these issues closely, and consider potential amendments to their comprehensive plans and zoning regulations, as the implementation of I-502 continues to unfold.

EPA and Army Corps held a joint conference call this morning to provide a general overview of the NOPR and a short Q&A session. According to the agencies, the proposed rule will clarify which streams, wetlands and other waters are considered “water of the United States” and, thus, subject to permitting requirements under the CWA.

The agencies also discussed an “Interpretive Rule” that was released separately today. The Interpretive Rule addresses certain agricultural permitting exemptions under the CWA and, according to the agencies, is intended to incentivize conservation practices.

The structure of today’s NOPR is similar to a version of the rule which was leaked in November 2013. However, the definition of certain key terms included in the NOPR diverge from the leaked draft in ways that are likely to affect the overall reach of this new formulation of “waters of the United States.” Van Ness Feldman is preparing a detailed alert summarizing these changes and discussing the implications of the NOPR, which will be available in the near future.

“Tidal energy offers enormous potential as a renewable energy supply. This Federal license represents a key milestone in the effort to develop the technology to harness this energy,” said VNF Partner Matt Love. “The Snohomish PUD’s leadership and vision has been instrumental in achieving this milestone.”

Snohomish County PUD and Van Ness Feldman partners Matt Love, Mike Swiger, and Julia Wood, have been working for years to bring tidal energy to the Northwest. If its pilot is successful, it will be in the forefront of energy technology.

The tidal-energy project in Admiralty Inlet is funded by $13 million in grants from the U.S. Department of Energy, Bonneville Power Administration and federal appropriations. The University of Washington, Pacific Northwest National Laboratory, Sound & Sea Technology and the National Renewable Energy Laboratory are also partners in the project.

On October 2, 2013, the Washington State Supreme Court denied review of a Court of Appeals opinion that affirmed a zoning decision by the City of Tacoma, allowing the Court of Appeals opinion and the City’s zoning decision to stand.

In Northshore Investors, LLC v. City of Tacoma, 301 P.3d 1049 (2013), the Court of Appeals found that a developer’s land use petition challenging the City’s decision under the Land Use Petition Act (LUPA) was not timely because the developer had not served the petition on the City within 21 days after the decision was issued. The Court of Appeals found that the City’s final decision had been issued when the City Council orally announced its decision to adopt, without modification, the findings and conclusions that had been previously prepared by the City’s Hearing Examiner. The Court rejected the developer’s argument that the decision was not issued until several days later, when the City mailed a notice describing the City’s decision. As a result, the developer’s LUPA petition was untimely and the Court of Appeals lacked jurisdiction to review it. This decision is yet another example of Washington courts’ strict application of LUPA’s 21-day appeal period.

It is also a reminder to land use practitioners in Washington that, if there is any doubt about when a land use decision had been issued, you should assume that the LUPA deadline will fall on the earliest possible date, and you should file and serve your LUPA petition accordingly.

The memorandum builds on a March 22, 2012 executive order (Executive Order No. 13604) that aims to facilitate faster regulatory reviews of proposed transportation, water resources, renewable energy, electric transmission, oil and gas pipeline, and other projects. The memorandum is available here: .

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About Van Ness Feldman LLP

Van Ness Feldman is a leading, highly responsive law and policy firm providing legal counsel, thought leadership, and policy strategy to help clients navigate the complex intersection between business and government. With over 100 professionals in Washington D.C. and Seattle, Van Ness Feldman is renowned for representing clients in energy, environment, land use, real estate, and government relations matters.